Health Law and Regulation Update:

The Supreme Court of Georgia unanimously reversed the Court of Appeals’ decision in the case of Resurgens, P.C. et al. v. Elliott, decided May 30, 2017, and determined that the trial court did not abuse its discretion when it excluded a rebuttal witness, as a discovery sanction, whose name was deliberately withheld during discovery. Plaintiff was a patient of the Defendants, and filed suit in 2011 claiming that the Defendants failed to timely diagnose and treat an abscess in his thoracic spinal cord which resulted in paralysis. Following four years of discovery, the case went to trial and resulted in a defense verdict. The Plaintiff filed a direct appeal which challenged the trial court’s exclusion of a rebuttal witness in the case.

At trial, a Defendant, who was the treating physician, was asked by the Plaintiff’s attorney whether the Defendant was at the bedside of the Plaintiff at a particular time. The Defendant denied being present. The Plaintiff then excused the Defendant, and called a rebuttal witness who was a nurse that would purportedly testify that the Defendant was in fact bedside. Defendant’s counsel objected, based on the fact that the witness had not been previously disclosed in discovery, the pretrial order, or in any communication between counsel. Plaintiff counsel argued that this particular witness fell within its interrogatory response “catch-all,” that she was a “treating medical provider…a person named in the medical records…and an impeachment witness.” Therefore, while she was not specifically named, she was referenced. Furthermore, if the discovery response was not clear enough, the onus was on the defense to request clarity or move the Court to compel a different response. The trial court ruled in favor of the Defendants, stating that the Plaintiff had determined to call the nurse as a witness before trial and intentionally withheld the witness’s name. As such, the Defendants were entitled to the discovery sanction of excluding the witness in order to “allow the trial to proceed without surprise, without ambush.” The Plaintiff appealed to the Georgia Court of Appeals who reversed the trial court.

The Court of Appeals stated that in the event a previously undisclosed witness is called to testify, the only remedy is to move for a postponement for a sufficient length of time to allow the objecting party to prepare, or to move for a mistrial. The Court of Appeals further stated that it is never appropriate for a trial court to exclude such a witness, even in cases where there was clear deception. The exclusion of a witness with probative value was an extreme response, and the discovery sanctions found in O.C.G.A. § 9-11-37(d)(1) are not available. The Defendants applied for certiorari to the Supreme Court of Georgia who granted review.

The Supreme Court reversed the Court of Appeals. The Court held that when a party provides false or deliberately misleading discovery responses, the aggrieved party is entitled to more than mere postponement or mistrial. The aggrieved party is entitled to discovery sanctions found in O.C.G.A. § 9-11-37(d)(1) which includes, among others, exclusion of a witness. The Court explained that a party who receives a substantive answer to a discovery request is entitled to believe that answer, and are not required to file blind motions to compel in hope of discovering the opposing party’s deception. Furthermore, false or intentionally misleading responses are worse than a failure respond, because the aggrieved party may never learn that it failed to receive the truth. Therefore, the aggrieved party should be entitled to discovery sanctions, including exclusion of the undisclosed witness. To allow otherwise, simply because the witness may offer some probative value, would encourage and reward deceptive behavior.

The take-home is that parties who face deceptive tactics by opposing counsel during trial are no longer confronted with the only options being a continuance or a mistrial, which are burdensome and expensive. There are now a severe repercussions for those attorneys who intentionally deceive opposing parties during discovery.

Further take-home is found in footnote 10 of the opinion, where the Supreme Court stated “[we] caution the bench and bar against relying on such “catch-all” categories in this manner; candor and cooperation, as opposed to “gotcha” moments and gamesmanship, should be encouraged between litigating parties.” What is clear now for plaintiff and defense counsel in Georgia is that routine discovery responses such as, “any medical provider named in the medical records,” may no longer be sufficient once trial has begun. Parties should take the time to list the individual names of potential witnesses and other evidence well before trial or risk their exclusion

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